BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

RICHARD S. DAVIES CONSTRUCTION
5756 Calle Vista Alegre
Yorba Linda, CA 92887

 

                              Employer

 

Docket No .

01-R3D1-630

 

DENIAL OF PETITION
FOR RECONSIDERATION

 

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above entitled matter by Richard S. Davies Construction (Employer).

JURISDICTION

Employer is a construction contractor. Between August 4, 2000 and January 22, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at one of Employer’s job sites, located at the southeast corner of Bake Parkway and North Pointe Drive, Lake Forest, California (the site).

On January 26, 2001, the Division cited Employer for a violation of section 3648(o) [Safety Belt in Aerial Device] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 Employer failed to ensure that two employees working 15 to 20 feet above the ground in an elevated aerial device were secured to the equipment by the use of a safety belt, body belt or safety harness with an appropriate strap or lanyard.

Employer filed a timely appeal but failed to appear for its hearing scheduled for January 25, 2002.

On February 14, 2002, the Board sent to Employer a “Notice of Intent to Dismiss Appeals.” The notice gave Employer ten days to provide the Appeals Board with a statement containing sufficient facts to show that Employer’s failure to appear at the hearing was reasonable and for good cause.

In response to the Board’s notice Employer contended that he could not find the hearing location on the hearing date and went to 2100 E. Katella, Tustin, rather than the hearing location at 2100 E. Katella, Anaheim. The Division opposed rescheduling the hearing contending that the hearing notice was mailed to the parties on November 16, 2001, giving Employer plenty of time to find the location of the hearing and that there is no 2100 E. Katella Avenue, Tustin, but there is a 2100 W. Katella in Orange which is 2 minutes from the hearing location. The Division further contended that Employer phoned the District Office one hour and ten minutes after the hearing was to begin at 9:00 a.m. stating that he was lost.

On August 29, 2002, the Board issued an Order Dismissing Appeal finding that Employer failed to provide good cause for failing to appear at the hearing.

On September 16, 2002, Employer filed a timely petition for reconsideration.

REASON FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer’s petition for reconsideration states, in total, that “new evidence has come to my attention and I feel it would help in my appeal.”

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based:

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.

Labor Code section 6616 provides that:

The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order or decision made and filed by the appeals board or a hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board.

These requirements are mandatory. Louis G. Beary Plastering, Cal/OSHA App. 76-1296, Denial of Petition for Reconsideration (Nov. 14, 1977). Employer’s petition plainly failed to meet these statutory requirements.

The Board has adopted regulations implementing this statutory provision. Section 391 of the Board’s regulations states that “[t]he petition for reconsideration will be denied if it contains no more than allegations of the statutory grounds for reconsideration, unsupported by specific references to the record and principles of law involved.”

Our review of Employer’s allegation reveals it to be conclusory and we find that the allegation does not rise to the level of specificity that warrants the granting of a petition for reconsideration under the above statutory and regulatory requirements.

DECISION

The Board affirms its Order Denying Late Appeal issued August 29, 2002.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 5, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.